Today, the Obama Administration is taking an important step toward common-ground reforms that strengthen the partnerships the federal government forms with faith-based and community organizations for the purpose of serving people in need. Nine federal agencies are issuing notices of proposed rulemaking (NPRMs) today that would clarify rules that apply to these partnerships and extend added protections for social service beneficiaries.
The impetus for these reforms came from a diverse Advisory Council for Faith-Based and Neighborhood Partnerships (Advisory Council). In 2009, President Obama asked this Council to make recommendations for strengthening the social service partnerships the government forms with nongovernmental providers, including strengthening the constitutional and legal footing of these partnerships. The Advisory Council issued its recommendations in a report entitled A New Era of Partnerships: Report of Recommendations to the President. While Council members differed on some important issues in this area, they were able come to an agreement on a number of significant recommendations. I had the honor of chairing this Advisory Council before I took my job at the White House.
In response to the Advisory Council’s recommendations, President Obama signed Executive Order 13559. Today, agencies are issuing proposed rules to accomplish some of the aims of that Executive Order.
The proposed rules clarify the principle that organizations offering explicitly religious activities may not subsidize those activities with direct federal financial assistance and must separate such activities in time or location from programs supported with direct federal financial assistance. For example, if a faith-based provider offers a Bible study as well as a federally supported job training program, the Bible study must be privately funded and separated in time or location from the job training program.
The NPRMs also propose new protections for beneficiaries or prospective beneficiaries of social service programs that are supported by direct federal financial assistance. In the proposed rules, the agencies set forth a notice to beneficiaries and prospective beneficiaries that informs them of these protections. These notices would make it clear, for example, that beneficiaries may not be discriminated against on the basis of religion or religious belief or be required to participate in any religious activities and advises beneficiaries that they may request an alternative provider if they object to the religious character of their current provider.
At the same time, the NPRMs assure religious providers of their equal ability to compete for government funds and of continuing protections for their religious identity like the ability of providers to use religious terms in their organizational names and to include religious references in mission statements and in other organizational documents. The NPRMs also state that the standards in the proposed regulations apply to sub-awards as well as prime awards, and set forth definitions of “direct” and “indirect” federal financial assistance. These areas have been sources of confusion for some providers.
The agencies are encouraging interested parties to submit comments on the proposed rules during the next 60 days. Once those comments have been received and analyzed, the final rules can be issued. Separate from the rulemaking process, agencies are continuing to work toward other modifications to their guidance, practices and communications strategies consistent with the Executive Order.
At the time the first Advisory Council made its recommendations to the President, its members stated in their report to the President:
As far as we know, this is the first time a governmental entity has convened individuals with serious differences on some church-state issues and asked them to seek common ground in this area. It should not be the last time a government body does so. Policies that enjoy broad support are more durable. And finding common ground on church-state issues frees up more time and energy to focus on the needs of people who are struggling. If adopted, these recommendations would improve social services delivery and strengthen religious liberty. They also would reduce litigation, enhance public understanding of these partnerships, and otherwise advance the common good.
We join the agencies in welcoming this news and look forward to continuing the important rulemaking process.
For each agency's NPRM, click on the relevant link below:
Melissa Rogers is the Director of the White House Office of Faith-based and Neighborhood Partnerships.